By Andrew J. Sommer and Ashley D. Mitchell
California has just reinstated the COVID-19 specific paid sick leave law that expired at the end of 2020 but this time with a twist. As we discussed in a blog post last year, California enacted the 2020 COVID-19 Supplemental Paid Sick Leave law to extend benefits to employees not covered by the paid benefits provision of the Families First Coronavirus Response Act (FFCRA). While the FFCRA’s paid sick leave provision lapsed on December 31, 2020 along with California’s 2020 COVID-19 Supplemental Paid Sick Leave law, California has just passed, effective March 29, 2021, the 2021 COVID-19 Supplemental Paid Sick Leave law extending benefits again with significantly expanded eligibility.
Eligibility Requirements
The 2021 COVID-19 Supplemental Paid Sick Leave law requires all California employers with more than 25 employees to provide COVID-19 related paid sick leave (up to 80 hours) to employees who cannot work or telework due to the reasons discussed below. This paid leave is in addition to any payment that was provided under the previous COVID-19 Supplemental Paid Sick Leave law expiring on December 31, 2020. The 2021 COVID-19 Supplemental Paid Sick Leave law does not apply to independent contractors, unlike the previous law, and expands upon the eligibility criteria. The California Department of Industrial Relations (DIR) has issued 2021 COVID-19 Supplemental Paid Sick Leave FAQs offering detailed guidance on this new law.
Covered employees are now eligible under the 2021 COVID-19 Supplemental Paid Sick Leave law if they are unable to work or telework due to any of the following reasons:
- The covered employee is subject to a quarantine or isolation period related to COVID-19, as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace
- The covered employee has been advised by a healthcare provider to quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis
- The covered employee is caring for a family member (as defined) who is either subject to a quarantine or isolation period or has been advised by a healthcare provider to quarantine due to COVID-19
- The covered employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises
- The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related symptoms
The California Supreme Court has largely been silent on meal period questions since its seminal decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker), clarifying that an employer satisfies its obligation to provide meal periods where it “relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage employees from doing so….” Brinker made clear that an employer is not obligated to police meal breaks and ensure no work is performed during these breaks. Despite this silver lining for employers, litigation has proliferated post Brinker in the form of class actions seeking premium pay – one hour’s pay at the employee’s regular rate of compensation for each workday a meal period is not provided – as well as collective actions under the Private Attorneys Generals Act (PAGA) pursuing penalties for alleged meal period violations.
By Andrew J. Sommer and Megan S. Shaked
A recent California Court of Appeal decision, 